There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate to the offender’s wrongdoing and an inefficient use of state resources. This Article considers a third response, one which penal reformers and theorists have radically neglected, even though it is recognized in the law: the punishment is degrading. In considering penal degradation, this Article examines what judges and scholars have deemed the exemplar of degrading treatment—torture. What is torture, and why is it wrong to torture people? If we can answer this question, this Article maintains, then we can understand when and why certain punishments—like perhaps long-term incarceration—are impermissibly degrading, regardless of their proportionality or social utility otherwise. This Article develops an original theory of torture. It argues that torture is the intentional infliction of a suffusive panic and that its central wrongness is the extreme disrespect it demonstrates toward a victim’s capacity to realize value. Humans realize value diachronically, stitching moments together through time to construct a good life as a whole. Torture takes such a being, one with a past and a future, and via the infliction of a make it stop right now panic, converts her into a “shrilly squealing piglet at slaughter,” in Jean Améry’s words, restricting her awareness to a maximally terrible present. The Article then considers what this theory of torture means for our understanding of degradation more generally. It argues that punishment is impermissibly degrading, regardless of our other penal considerations, when it rejects an offender’s status as a human. Punishment reaches this threshold by demonstrating that the offender’s life-building capacity—the very basis of his humanity—is completely absent or fundamentally worthless. To so thoroughly deny someone’s value, even someone who has committed a heinous crime, violates the liberal commitment to human inviolability. The Article closes by suggesting that long-term incarceration rejects an offender’s status as a human, and is therefore on a par with penal torture, given that removing someone from free society for decades makes it exceedingly difficult for him to construct a good life as a whole.

This Article examines the contentious debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of conduct that is quite common. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle purely designed to protect defendants accused of financial or environmental crimes. Rather than advocating for or against such proposals, this Article argues that opposition to mens rea reform should trouble scholars and activists who are broadly committed to criminal justice reform. Specifically, I argue that the opposition demonstrates three particular pathologies of the U.S. criminal system and U.S. criminal justice reform: (1) an overreliance on criminal law as a vehicle for addressing social problems; (2) the instinct to equalize or level up—when faced with inequality, many commentators frequently argue that the privileged defendant should be treated as poorly as the disadvantaged defendant, rather than using the privileged defendant’s treatment as a model; and (3) the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants. Ultimately, this Article argues that achieving sweeping and transformative criminal justice reform will require overcoming the three pathologies.

The Federal Bank Robbery Act had been on the books for seventy years by the time the federal appellate courts began to openly quarrel about the necessary elements of attempted bank robbery under the first paragraph of the Act, 18 U.S.C. § 2113(a). Specifically, the circuits disagree as to whether proof of actual force is required to sustain a conviction of attempted bank robbery, or if attempted force is sufficient for a conviction. Legal scholars have repeatedly framed this split in authority as a consequence of competing methods of statutory interpretation. In this Comment, however, I argue that it is neither a true split, nor the result of competing methods of interpretation. In fact, a close examination of the case law reveals that in those instances where the majority circuits have held that attempted force is sufficient for a conviction, the courts are skipping the statutory analysis altogether. Further scrutiny of the facts in each of the majority cases shows that this non-canonical approach to statutory interpretation—or, more accurately, the absence of an approach—only occurs when certain distinguishing facts are present: (1) foreknowledge of the attempt by law enforcement; and (2) the corresponding opportunity for law enforcement to intervene before somebody gets hurt. As such, I contend the so-called split is more accurately categorized as an exception to the statutorily prescribed actual force requirement, firmly rooted in one of the primary policy considerations behind the passage and current enforcement of the Act: protecting innocent bystanders from harm.